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From a wheelchair, Lowell man's a force for accessibility

By Todd Feathers , tfeathers@lowellsun.com

Updated:
04/09/2018 07:35:53 AM EDT

Dino Theodore of Lowell, paralyzed from the waist down after an accident in 1981, has worked with attorney Nicholas Guerrera to sue more than 50 companies for failing to comply with the Americans With Disabilities Act. They see themselves as activists, while some business owners see them as nuisances. SUN / TODD FEATHERS

LOWELL -- In April 2013, Dino Theodore was admitted to the Saints campus of Lowell General Hospital with a fractured hip and femur.

It wasn't the typical patient experience.

As Theodore, of Lowell, who is paralyzed from the waist down and restricted to a wheelchair, began to recover, he found "despicable" problems with the facility, including bathroom doors and walkways too narrow to accommodate a wheelchair.

"I could not take a shower, I could not go in to use the facilities," he said. "It's very important for a person in a wheelchair -- disabled, paralyzed -- to get up out of bed because the skin integrity is poor so a person needs to get up and move around, but I couldn't do that. I was confined to my bed."

Theodore, who describes himself as an aggressive advocate for access, wasn't the typical patient from the hospital's perspective, either.

He and his attorney, Nicholas Guerrera, had previously sued Lowell General Hospital under the Americans with Disability Act for noncompliance at its main campus. And a year after Theodore's admission, they sued again to address his complaints about the Saints campus.

The hospital is just one in a long list of companies in Massachusetts and New Hampshire -- there have been more than 50 over the past decade -- that Theodore and Guerrera have sued in federal court over their compliance with the landmark disability rights law.

The work has earned them a reputation as shysters among some of those on the other end of their lawsuits.

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Even Lowell General Hospital, which said in a statement that it applauded Theodore's efforts to improve access in general, argued that his lawsuits were frivolous and unnecessary because the hospital was already ADA compliant.

The two sides reached a settlement late last year.

For Theodore, such responses are added reason to continue a crusade motivated by years of small humiliations and frustration at the lack of understanding around the issue.

The law says that, by 1992, he should have had the same ability to move around a hospital room or withdraw money from a bank as a fully able-bodied person. But 26 years later, Theodore finds that in many cases he cannot.

A personal campaign

When Theodore fractured his T7 vertebrae in 1981, paralyzing his legs, accessibility wasn't part of the public lexicon.

When he returned to Northeastern University, where he had been studying criminal justice in the hopes of becoming a state trooper, he missed classes on upper floors because he couldn't reach them. He had to listen to lectures from the hallway when doors were to narrow for his wheelchair.

"I got kind of hard after having been subjected to all this," he said. "(The lawsuits) are a way for people to not have to suffer the way I suffered, because I can't explain how difficult it is to have people carry you up a flight of stairs."

Theodore's injury came at time when the disability rights movement, which drew on the success of the civil rights movement, was coming into its own.

The first major victory had come in 1973, when Congress passed the Rehabilitation Act, a portion of which banned recipients of federal funds from discriminating against people with disabilities.

It was the beginning of a shift away from the common attitude that people with physical and mental disabilities could not lead normal lives and ought to be sheltered in institutions.

The movement fought off several attempts in the 70s and 80s to roll back the new regulations, which some business groups found cumbersome and costly. Continued advocacy eventually won the passage, in 1990, of the ADA, which extended non-discrimination and accessibility rules.

The U.S. Department of Justice is charged with enforcing the law and has had success forcing changes with targeted campaigns against certain types of businesses or institutions. But it will never have enough resources to ensure that every public and private facility is in compliance, said Stan Eichner, director of litigation for the Disability Law Center.

"It's one of the reasons that private lawsuits have been necessary to get people's attention -- because there's no agency that's affirmatively going around looking to enforce the law," he said.

Battles large and small

The businesses Theodore and Guerrera have sued range from real estate investors who own small office buildings and gas stations to major national retailers, like Wal-Mart, and world-renowned health care providers, like Massachusetts General Hospital.

Some of the cases arise organically, as in the case of a lawsuit filed in January against Citizens Bank, where Theodore has been a customer for over a decade.

After calling the bank for a list of branches that he could easily withdraw money from, Theodore was directed to a branch that had a staircase to its only entrance, he said. A clerk eventually had to come outside and count out a substantial sum of cash to him on the sidewalk.

In other instances, Theodore serves as a "tester," following up on complaints he gets from other people in the disability community and attempting to access buildings that he believes are non-compliant, according to court records.

"We don't look to hurt anybody," Theodore said. "We look to go into places that can do the accommodation and have the reasonable means to do it."

The Sun contacted the owners of several businesses Theodore and Guerrera have sued. None of them agreed to be quoted because they were unsure if their settlement agreements allowed it.

One owner said the experience had been a "nightmare" and that before he even started his small real estate business a friend, who had also been sued by the pair, warned him to watch out for Theodore.

Under the ADA, plaintiffs in lawsuits cannot receive monetary damages, but they are eligible to recoup attorneys fees.

Theodore is also a lawyer, employed by the state's Executive Office of Labor and Workforce Development, and assists with his own cases. Guerrera said they carefully document both their hours and present their records as evidence when requesting attorneys fees.

The settlement agreements Theodore and Guerrera reach -- almost all of their cases end in settlements -- state that the financial aspects must be kept confidential. Defendants in the cases often request that provision.

In an ADA lawsuit Guerrera handled for a different client against the city of Methuen, though, court records show that he requested $29,750 in attorneys fees for a case that lasted 15 months. For a small business, that would be a substantial sum.

What works? Lawsuits

Last summer, news media latched onto a story about Scott Johnson, a disabled lawyer who had brought more than 2,000 ADA cases against businesses in California, where a state law makes it possible for plaintiffs to recover damages.

Stories like that made Guerrera and Theodore cautious, initially, to sit down for an interview. They fear being slapped with the serial plaintiff moniker, but they aren't apologetic about their strategy.

Lawsuits are the only consistently effective way to ensure compliance, the pair said, and even those fall short.

"If you want to talk about aggressive, (Lowell General Hospital's lawyer) was aggressively defendant and a majority of what she was doing to defend just kind of withered our case away," Theodore said.

The two sides settled the case in November after more than two years of negotiations. While the hospital made some changes, the bathrooms in patients' rooms at the Saints campus remain inaccessible for people in wheelchairs. Other restrooms in the hospital are accessible.

"While we respect Mr. Theodore's efforts to improve access for the disabled across the region, we want to stress that both the main and Saints campuses have remained compliant with the rules and standards set forth by the Americans with Disabilities Act throughout this process," William Courtney, a hospital spokesman, wrote in a statement.

He added that as part of its regular accessibility review, and with "the aid of Mr. Theodore's perspective," the hospital restriped its parking lot, reconfigured handicapped spaces, installed railings along outside walkways, and retrained staff on accessibility issues.

It was far from the most successful or amicable case Theodore and Guerrera have brought, they said.

"That's where the true advocacy comes in," Theodore said. "I come into this wanting a lot done -- I want every particular thing that's in violation corrected ... Sometimes I don't see it, and sometimes I walk away with a smile on my face knowing we got a lot accomplished."

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